SJC Requests Briefs on Marriage from Interested Parties by Friday

MassNews Staff
December 9, 2002

The Supreme Judicial Court has set a deadline of Friday, December 13, for "interested parties" who wish to file a brief, letter or memorandum about the requests from Gov. Jane Swift and Senate President Tom Birmingham for advice from the SJC on their roles when Amendments to the Constitution are presented to them.

The Governor sent her request last Tuesday morning, Dec. 3, while the full Court was hearing oral argument on the case brought by Sarah McVay Pawlick, President of Mass. Citizens for Marriage, against Sen. Birmingham.

Birmingham responded two days later on Thursday with his request that the Court also advise him on what is expected of him and the Senate.

Most lawyers are now saying that it appears certain a vote will be held in the Legislature before the end of the year.

Forfeited Their Right to Vote

However, the attorney for Pawlick is urging the Court to hold that the Legislature forfeited its right to vote on the Amendments when it voted to adjourn on July 17 without taking a vote on the Amendments as required by the state Constitution.

He is urging the Court to tell the Secretary of State to notify the new Legislature in January that it should consider that this Legislature has forfeited its right to vote. The new Legislature should follow its Constitutional duties and consider the Amendment as though this Legislature had voted to pass it on.

He points out that this is not a drastic remedy because the leaders of the new Legislature have already indicated that they will obey the law, debate the measure and hold a vote on it. If they do not approve it, they can kill the measure when they vote on it if 25% of the Legislators do not vote to send it on to the people.

The SJC has done this with voter initiatives for new laws when the Legislature failed to act, but it has never been asked to do this for voter initiatives for constitutional amendments.

Birmingham Caused Surprise

Birmingham's request caused surprise because his lawyer from the Attorney General's office was telling the SJC that it had no jurisdiction over him because Pawlick had no more right to sue him than any other citizen. But apparently without even notifying his lawyer, Birmingham told the Court on Thursday that he was accepting their right to hear Pawlick's case.

"This is great news," said Pawlick upon learning about Birmingham's action. "It's exactly what we've been predicting for months."

But it's not over yet, she has cautioned.

"Now we must make sure that we win the vote when it comes. Everyone who supports this Amendment to protect the family as the basic unit of our society should contact their Senator and Rep immediately.

"Pawlick reiterated that every legislator meticulously counts the number of communications received by his or her office.

"It is vital that if you favor this Amendment, you contact your own legislators immediately by telephone, email, fax or letter. They will be counting the number received from each side. We are told all the time to vote at 'elections.' This is an important 'election.' Whether each of us responds will affect our society for years to come.

"We should also thank Sen. Birmingham and Gov. Swift for agreeing to follow the Constitution, even though they are late in doing so. As long as we finally get our vote, that is what is important. We will not hold any grudges. But we will continue to monitor very closely who does what."

Chiefly, Birmingham wants to know whether he would be considered in violation of the Constitution if he recognizes a Motion to Adjourn should the convention reconvene.

"We are facing a dilemma. I'm just trying to play it straight," Birmingham said last Thursday. "If we are called back, what am I supposed to do?"

Birmingham claimed that lawmakers believe that adoption of an adjournment motion to be "final action," but are mindful of court rulings that conclude adjournment does not constitute final disposition.

His order seeking an advisory opinion was adopted by voice vote and without debate during Thursday's informal session. In four questions, the order asks the SJC whether, if lawmakers finally decide to follow the Constitution, any of the following actions would be illegal: moving to adjourn before taking action on all three of the Amendments which are before them, recognizing a motion to adjourn before action is taken on the Amendments, and voting to adjourn before taking action on them.

Lastly, the order asks the court to indicate whether Sen. Birmingham, as presiding officer during the convention, is required to take any further action if the joint session votes to adjourn without voting on the three Amendments before it.

Questions That Were Asked

The specific questions asked by the Senate are:

1. Would a member of the joint session violate Article 48 by moving to adjourn before the joint session otherwise takes action on any of the proposed amendments?

2. Would the President of the Senate, as presiding officer of the joint session, violate Article 48 by recognizing a motion to adjourn before the joint session otherwise takes action on any of the proposed amendments?

3. Would the joint session violate Article 48 by voting to adjourn before otherwise taking action on any of the proposed amendments?

4. If the joint session votes to adjourn before otherwise taking action on any of the proposed amendments, does Article 48 require any further action by the President of the Senate?

The questions asked by Gov. Swift are:

1. Does adjournment by a roll call vote (137 yeas to 53 nays) of the joint session [of the two Houses] constitute final action on a proposed constitutional amendment such that the Governor's power and duty to recall the joint session under Article 48 [of the Constitution of the Commonwealth] do not attach?

2. If there has not been final action by the joint session, may the Governor, using her judgment, reasonably determine whether this controversy has reached the 'limits of futility,' LIMITS v. President of the Senate, 414 Mass. 31, 32 n. 4 (1992), such that she may decline to recall the joint session under Article 48?

Two other Amendments were also bottled up without a vote on July 17 when the joint Legislature voted to violate the Constitution and adjourn without taking a vote on any of the Amendments. Both of them originated in the Legislature. One would hold that in the case of a vacancy in the office of Lieutenant Governor, the Governor would nominate a new Lieutenant Governor who would take office upon confirmation by the Legislature. The other says that judges would have to be reappointed by the Executive Council every six years.